June 30, 2013

There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism"--actually a family of constitutional theories. The idea that courts would look to evidence from the constitutional convention, the ratification debates, The Federalist Papers, and the historical practice shortly after ratification of the Constitution of 1789 (or to equivalent sources for amendments) is an old one. This post provides a very brief introduction to "originalism" that is aimed at law students (especially first-year law students) with an interest in legal theory.

Originalism is not just an ivory tower theory. It has had a profound influence on the practice of constitutional interpretation and the political contest over the shape of the federal judiciary. President Reagan's nomination of Robert Bork (an avowed originalist) was one key moment--with his defeat by the Democrats was seen as a political rejection of originalism. The current Supreme Court has at least two members who seem strongly influenced by originalist constitutional theory--Associate Justices Antonin Scalia and Clarence Thomas and two others, John Roberts and Samuel Alito who may also be receptive to originalist arguments.

The Origins of Originalism

No one scholar or judge deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciaryin 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. The landscape changed again in the late 1980s, when Justice Antonin Scalia suggested that originalists should shift their attention from "the original intentions of the framers" to the "original public meaning of the constitutional text."

The New Originalism

The final chapter of the originalism debate in legal theory has yet to be written--and perhaps it never will be. But one last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. One of the important moves was the shift from "original intentions" to "original public meaning," but two other developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court. (Ackerman does not call himself an "originalist," but many of Ackerman's former students do work that is implicitly or explicitly originalist.) Second, Randy Barnett (the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists. The most recent development in this dynamic is Jack Balkin's attempt to reconcile originalism with living constitutionalism. Balkin's article, "Abortion and Original Meaning" (link provided below) elicited a good deal of commentary and criticism: his recent book, Living Originalism, further developes his take on originalist theory and applies it to a variety of topics.

After the publication of Paul Brest's Misconceived Quest one heard talk that originalism was dead as a serious intellectual movement. These days one is just as likely to hear pronouncements of a different sort: "we are all originalists" or "originalism and living constitutionalism are compatible" or even "originalism is trivially true. Contemporary debates about originalism sometimes use the label, "the New Originalism" to distinguish the current emphasis on "original public meaning" from older forms of originalism that emphasized "original intentions." The story of that transition is crucial to understanding the current discussion among constitutional theorists.

Original Intentions

Early originalists emphasized something called the original intentions of the framers. Even in the early days, there were disputes about what this phrase meant. Of course, there were debates about whether the framers (a collective body) had any intentions at all. And there were questions about what counted as "intentions," e.g. expectations, plans, hopes, fears, and so forth. But the most important early debate concerned levels of generality. The intentions of the framers of a given constitutional provision can be formulated as abstract and general principles or as particular expectations with respect to various anticipated applications of the provision. Most theorists will assent to this point, which flows naturally from the ordinary usage and conceptual grammar of the concept of intention. The difficulty comes because the different formulations of intention can lead to different results in any given particular case. For example, the intention behind the equal protection clause might be formulated at a relatively high level of generality--leading to the conclusion that segregation is unconstitutional--or at a very particular level--in which case the fact that the Reconstruction Congress segregated the District of Columbia schools might be thought to support the "separate but equal" principle of Plessy v. Ferguson. Perhaps the most rigorous defender of the original intentions version of originalism has been Richard Kay in a series of very careful articles.

Yet another challenge to original-intent originalism was posed by Jefferson Powell's famous article, The Original Understanding of Original Intent, published in 1985. Powell argued that the framers themselves did not embrace an original intention theory of constitutional interpretation. Of course, this does not settle the theoretical question. The framers, after all, could have been wrong on this point. But Powell's critique was very powerful for those who insisted that constitutional interpretation must always return to origins. A certain kind of original-intent theory was self-defeating, if Powell's historical analysis was correct. Moreover, some of the reasons that Powell identified for the framers' resistance to originalism were quite powerful. Especially important was the idea that "secret intentions" or "hidden agendas" had no legitimate role to play in constitutional meaning. In the end, however, Powell's article actually had the effect of turning originalism in a new direction--from original intention to original meaning.

Original Public Meaning

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism” and also is called “Original Meaning Originalism.” Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role. As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.” The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson with Steven Calabresi as another “early adopter.” The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett and Keith Whittington have played prominent roles in the development of the “New Originalism.” Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways. For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason). This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.” With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism. The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.” Balkin has called his position on the relationship between originalism and living constitutionalism "comptibilism," but it is important to understand that this means that an originalist approach to interpretationis consistent with a living constitutionalist approach to construction.

Regime Theory

Yet another important twist in originalist theory is emphasized by the work of Bruce Ackerman: a twist that I shall call "regime theory." The foundation for regime theory is the simple observation that the Constitution of the United States was adopted in several pieces--the Constitution of 1789 was supplemented by a variety of amendments. And of these amendments, the three reconstruction amendments (the 13th, 14th, and 15th) are of especial importance--because of the significant structural transformation they work in the relationship between the powers of the national government and the powers of the states. Interpreting the whole Constitution requires an understanding of the relationship between the provisions of 1789 and those adopted during Reconstruction. Some regime theorists argue that the interaction between these two constitutional regimes has the implication that provisions adopted in 1789 take on a new meaning and significance after the Reconstruction Amendments were adopted.

Ackerman's own version of regime theory includes a fascinating and important challenge for originalists of all stripes. Ackerman emphasized the fact that both the Constitution of 1789 and the Reconstruction Amendments were adopted through processes that were extralegal under the legal standards the prevailed at the time. The Articles of Confederation required unanimous consent of all the states for constitutional amendments and for complicated reasons, it seems likely that the Reconstruction Amendments were of dubious legality if strictly judged by the requirements set forth for amendments in Article V. Ackerman's conclusion was that the Constitution derives its legitimacy, not from the legal formalities, but from "We the People," when mobilized in extraordinary periods of constitutional politics. Perhaps the most controversial conclusion that Ackerman reaches is that the New Deal involved another such constitutional moment, in which "We the People" authorized President Roosevelt to act as an extraordinary Tribune, empowered to alter the constitutional framework through a series of transformative appointments. If one accepts this view, then one might begin to ask questions about the "original meaning" of the New Deal--a kind of originalism that would surely not be embraced by the conservative proponents of originalism in the 70s and early 80s.

Does Originalism Have a Core?

Originalism continues to evolve, and the lines of development sometimes converge, but it is fair to observe that originalism in the early years of the twenty-first century has several variations. "Original public meaning" is one focal point, and the distinction between "interpretation" and "construction" has gained widespread traction, but there are many points upon which originalists disagree. This leads to the question: does originalism have a core? One answer to this question focuses on the distinction between two dimensions of the debate about originalism. The first dimension is semantic: the semantic dimension of controversies about constitutional interpretation addresses the question, "What is the meaning of the constitutional text?" The second dimensions is normative: the normative dimension of debates about constitutional practice addresses the question: "How should constitutional actors (judges, other officials, and citizens) act once the meaning of the constitution has been determined?" If there is any core to contemporary originalism, it focuses on the semantic dimension. Almost all originalists agree that the semantic content of a given constitutional provision was fixed during the period of drafting and ratification. Some originalists believe that original intentions fixed the meaning; most contemporary originalists believe that "original public meaning" or "conventional semantic meaning" fixed the content. But (so far as I know) almost every originalist theorist would agree that the "linguistic meaning" or "semantic content" of a constitutional provision does not change.

The point made in the prior paragraph can easily be misunderstood. New originalists who embrace the distinction between construction and interpretation concede that the meaning of some constitutional provisions is vague, and therefore that these provisions require construction that goes beyond translation of the meaning of the text into legal doctrine. The core commitment of originalism to fixed semantic content does not entail fixed constructions. For example, it might be the case that the key phrases that define the constitutional seperation of powers, "judicial power," "executive power," and "legislative power," have an original public meaning that was vague. Given this vagueness, much of the important work required to resolve a dispute about the application of these phrases must be done by constitutional construction. This means that originalists who share the core commitment to the idea that meaning was fixed by 1789 when the Constitution was ratified may disagree about the proper method of construction of the separation of powers provisions.

Originalists disagree about other important questions as well. In particular, there is no consensus among originalists about the normative justifications for fidelity to the original meaning. Some originalists belive that originalism is normatively justified by popular sovereignty theory: we should adhere to the original meaning because it was ratified by "We the People." Other originalists, like Randy Barnett, argue that the legitimacy of the Constitution is a function of the justice of its content. And yet other originalists have argued that adherence to original meaning is justified by the rule of law values of predictability, certainty, and stability. These disagreements about normative foundations may lead to further disagreements about the extent to which "original meaning" should trump other considerations. For example, should constitutional actors always adhere to original meaning when it conflicts with historical practice or judicial precedent?

Originalism and Precedent

We are already beginning to see originalists coming to grips with the relationship between original meaning and precedent--both in the narrow sense of Supreme Court decisions and the broader sense of the settled practices of the political branches of government and the states. Some originalists have argued that as a general rule, constitutional actors should follow original meaning, even if it would conflict with longstanding historical practice or settled precedent. Other originalists argue that precedent and/or historical practice can trump original meaning in specified circumstances. Among originalist judges, Justice Scalia has sometimes argued that precedent trumps original meaning, whereas Justice Thomas seems to be more willing to upset precedent that is inconsistent with originalism.

The New Critics of the New Originalism

The most recent installment in debates over the new originalism has been the emergence of a recent body of work that criticizes the new originalism. This work includes "Rebooting Originalism" by Stephen Griffin, "Originalism is Bunk" by Mitch Berman, and "Originalism's Living Constitutionalism," by Thomas Colby and Peter Smith. The distinctive feature of the new criticism is that it takes into account, in various ways, originalisms shift from intentions to public meanings.

Conclusion

This entry in the Legal Theory Lexicon is both too long and too short. Too long, because I strive to make Lexicon entries sufficiently brief so that they can be read in just a few minutes. Too short, because the convulated terrain of the originalism debates can only be fully mapped (much less argued out) in a very long article. Nonetheless, I hope that I have provided enough background for a beginning student of constitutional law to get a sense of the lay of the land. Debates about the new originalism are at the center of contemporary constitutional theory, but the long and twisted history of those debates makes it difficult to get started without a guide.

Since the Cold War ended, China has become a global symbol of disregard for human rights, while the United States has positioned itself as the world’s chief exporter of the rule of law. How did lawlessness become an axiom about Chineseness rather than a fact needing to be verified empirically, and how did the United States assume the mantle of law’s universal appeal? In a series of wide-ranging inquiries, Teemu Ruskola investigates the history of “legal Orientalism”: a set of globally circulating narratives about what law is and who has it. For example, why is China said not to have a history of corporate law, as a way of explaining its “failure” to develop capitalism on its own? Ruskola shows how a European tradition of philosophical prejudices about Chinese law developed into a distinctively American ideology of empire, influential to this day.

The first Sino-U.S. treaty in 1844 authorized the extraterritorial application of American law in a putatively lawless China. A kind of legal imperialism, this practice long predated U.S. territorial colonialism after the Spanish-American War in 1898, and found its fullest expression in an American district court’s jurisdiction over the “District of China.” With urgent contemporary implications, legal Orientalism lives on in the enduring damage wrought on the U.S. Constitution by late nineteenth-century anti-Chinese immigration laws, and in the self-Orientalizing reforms of Chinese law today. In the global politics of trade and human rights, legal Orientalism continues to shape modern subjectivities, institutions, and geopolitics in powerful and unacknowledged ways.

This Article identifies and analyzes the recent emergence of a “tiers of scrutiny” system in Supreme Court jurisprudence respecting the boundaries of Congress’s enumerated powers. The inquiry is motivated by the Court’s recent ruling on the federal healthcare law, which demonstrated that the national legislature’s election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power’s substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in the Constitution. Variation in the standard of review generates both synchronic and diachronic oscillation in the quantum of empirical justification and means-end rationality demanded of Congress. This observed heterogeneity in the judicial demand for legislative rationality and empirical evidence is quite distinct from questions of how broadly or narrowly the substance of each enumerated power is defined.

This Article’s threshold contribution is a comprehensive documentation of variation in doctrinal formulae concerning the standard of review in enumerated powers cases. Having demonstrated the existence of tiers of scrutiny for enumerated powers, it then evaluates their use in enumerated powers jurisprudence. Drawing on political science scholarship, social choice theory, and public choice theory, it demonstrates that the Court’s use of tiers of scrutiny has deleterious effects on judicial and legislative incentives and behavior. This Article then identifies six potential justifications for the Court’s emergent practice of calibrating judicial review differentially by enumerated power. Closely examining each of those six justifications for stratified review, it finds all of them wanting. At the same time as it creates negative externalities, therefore, the practice of tiered review for enumerated powers lacks any compelling normative justification. By abandoning the emerging tiers of scrutiny and instead employing a lockstep approach to the review of enumerated powers, this Article suggests, federal courts would reduce opportunities for strategic behavior by judges and elected officials. The proposed doctrinal reformulation would also introduce clarity into a currently opaque, yet abidingly important, domain of public law.

As a chapter in the valuable collection Africa and the Future of International Criminal Justice (Vincent O. Nmehielle ed., Eleven Publ. 2012), this discussion argues that the debate about the relationship between the ICC and Africa should not be confined to interpreting the treaty obligations between the ICC and African states. It must also and equally address issues of African equity in the global criminal law process. In understanding these imperatives of equity, three policy Dilemmas regarding international criminal law must be identified and explored as inherent in the general debate. One centers on the ‘principle of necessary self-help for subordinated peoples', including exploring the issue of complementarity in Africa under international criminal law. A second Dilemma revolves around the global authority of the Nuremberg Principles and African regional authority, including Africa’s ability under the African Union to collectively make decisions on how best to deal with issues of international criminal accountability of its subjects, and including a critical discussion of the Yerodia case. And a final Dilemma goes to the normative assumptions and grounding for the authority to decide among strategies and issues, where “peace” approaches to international criminality, resting on negotiations with accused wrongdoers and diplomacy, appear to collide with and undermine “justice” approaches, incorporating the priority of invoking and preparing international criminal legal accountability strategies against the same wrongdoers, including issues of immunity and amnesty, and including discussion of the Bashir and Gaddaffi arrest warrants. These three Dilemmas demand informed decision making to enable African peoples to establish the most equitable non-subordinated relationship to ICC authority, and to determine the correct balances of legitimacy, in the context of Africa’s role in the global international criminal law process.

Where regulators fail to implement the precautionary principle, the result is that scientific uncertainty can become an impediment to effective environmental legislation, and communities may be subjected to hazardous pollution. In contrast to the precautionary principle, which is a relative newcomer to international law, security of the person has been firmly entrenched in human rights law at least since the promulgation of the Universal Declaration of Human Rights. There is a strong argument that security of the person includes both physical and psychological integrity, either one of which may be undermined by environmental degradation. In the realm of environment, security of the person must be understood through the lenses of both precaution and environmental human rights. The precautionary principle in particular may provide governments and courts with significant guidance as to the appropriate treatment of scientific uncertainty in claims involving environmental security of the person.

In the spring of 1786, a series of newspaper essays appeared in Boston arguing that lawyers and the laws on which they relied posed a mortal threat to the republican way of life and therefore had to be eradicated forever. Authored by Benjamin Austin, Jr. under the pseudonym "Honestus," these writings sparked a substantial public dialogue extending far beyond Massachusetts’s borders and, within the Bay State, prompted the Shaysites to wage what one historian has called "the American Revolution’s final battle." The commonly held notion that the obstreperous spirit of 1786 reflected a "crisis" requiring redress, and that ratification of the Constitution thereafter resolved it, temps us to consign Critical Period radicals such as Benjamin Austin to the losing side of history. The Article pursues a contrary interpretation. It views Austin and his partisans in 1786 as seminal figures in the birth of an independent American legal culture. It traces overlooked strains of this post-Revolutionary legal culture from the Founding to the Civil War and, in the process, unsettles foundational assumptions long held dear by American legal historians.

In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid. First published in 2009 and re-issued in paperback in 2012, The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level.

This Article identifies and analyzes the recent emergence of a “tiers of scrutiny” system in Supreme Court jurisprudence respecting the boundaries of Congress’s enumerated powers. The inquiry is motivated by the Court’s recent ruling on the federal healthcare law, which demonstrated that the national legislature’s election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power’s substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in the Constitution. Variation in the standard of review generates both synchronic and diachronic oscillation in the quantum of empirical justification and means-end rationality demanded of Congress. This observed heterogeneity in the judicial demand for legislative rationality and empirical evidence is quite distinct from questions of how broadly or narrowly the substance of each enumerated power is defined.

This Article’s threshold contribution is a comprehensive documentation of variation in doctrinal formulae concerning the standard of review in enumerated powers cases. Having demonstrated the existence of tiers of scrutiny for enumerated powers, it then evaluates their use in enumerated powers jurisprudence. Drawing on political science scholarship, social choice theory, and public choice theory, it demonstrates that the Court’s use of tiers of scrutiny has deleterious effects on judicial and legislative incentives and behavior. This Article then identifies six potential justifications for the Court’s emergent practice of calibrating judicial review differentially by enumerated power. Closely examining each of those six justifications for stratified review, it finds all of them wanting. At the same time as it creates negative externalities, therefore, the practice of tiered review for enumerated powers lacks any compelling normative justification. By abandoning the emerging tiers of scrutiny and instead employing a lockstep approach to the review of enumerated powers, this Article suggests, federal courts would reduce opportunities for strategic behavior by judges and elected officials. The proposed doctrinal reformulation would also introduce clarity into a currently opaque, yet abidingly important, domain of public law.

This paper reviews two recent books on the Precautionary Principle (PP):

The Reality of Precaution: Comparing Risk Regulation in the United States and Europe (Jonathan B. Weiner et al. eds., 2011)

David Vogel, The Politics of Precaution: Regulating the Environmental Risks in Europe and the United States (2012)

Each book documents the history and variety of issues relevant to understanding the PP controversy, but they manifest markedly different approaches to the problems of meaning and explanation with regard to social phenomena.

This article evaluates the relationship between workplace equality and the technology of egg freezing, which allows women to “bank” their eggs until they are ready to use them. As the workplace increasingly rewards education and career investment, middle class women postpone family formation until they have attained a measure of financial security and the maturity to balance dual earner arrangements. Yet, as they age, their reproductive potential diminishes dramatically. By contrast, women who do not complete college (and aren’t even thinking about graduate school) bear children at different times in their life cycles, with less leverage with employers, and different understandings about the appropriate tradeoffs between work and family, fathers and mothers, single and dual-parenting.

The article contrasts egg freezing’s enormous potential benefits to individual women (and their partners) against the potential dangers. Once egg freezing takes hold as a valuable – and viable – option, pressures are likely to build to make it a routine one. A fertility industry eager to enhance its market share may well push its services without comprehensive assessment of the potential risks to the health of women and children.

Moreover, the availability of egg freezing may make it that much harder to marshal coalitions to push for more family friendly workplaces. It is accordingly likely to exacerbate existing cultural, regional, and class divisions. The result of technological advances in egg freezing will further marginalize those on the losing end of today’s economy, reinforcing the growing disparity between families based on class. We predict that the overall effect will be to slow the needed remaking of workplace and family systems to better accommodate a changing relationship between work and family and reinforce the diverging socioeconomic status and socializations of elite and working-class women. Ultimately, the cultural dilemmas inherent in egg freezing show the need to develop new models of success: for working class women, this means educational and employment opportunities that encourage them to delay childbearing, and for elite women, this means opportunities that foster earlier childbearing.